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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO. CC 54/2020

In the matter between:

THE STATE                                                                                                                                   

and

THEMBENTONI ZINGELA                                                                                           Accused

JUDGMENT

Bloem J.

[1]        The accused was charged with two counts of murder.  In count 1 it was alleged that on 24 December 2017 and at Addo he unlawfully and intentionally killed Sindile Qebelu and in count 2 it was alleged that on 23 June 2019 and at Addo he unlawfully and intentionally killed Mbulelo Matshona.  He pleaded not guilty to both counts.  In respect of count 1 his defence was an alibi in that he was with his girlfriend throughout the day on 24 December 2017 and continued to spend the night together until the following morning when they visited her home.  In respect of count 2 he pleaded that he was present when one Masakala Makwitshi stabbed the deceased to death.  After the stabbing he went to his uncle’s house to report the incident and also to ask for a plastic bag which Masakala wanted to use to dispose of the deceased’s body.  His uncle gave him a plastic bag and chased them away.  The accused went to his aunt to report the incident but she chased them away.  He gave the same explanation to the police.  Masakala ran away after he was released on bail.

[2]        The state called Xola Kayingo who testified that at about 03h00 on 24 December 2017 he met the accused along, what was referred to in the evidence as, Msuthu’s Street, officially known as Mtyopho Street, Addo.  He and the accused were walking in opposite directions.  The accused was in the company of a young man who was unknown to him.   The accused asked him what he was doing in the street at that time of the morning.  He told him that he was on his way to the tavern to buy cigarettes.  While they were conversing another young man appeared.  The accused addressed him as Sindile and told him to get closer to him.  All along the accused held his arms behind his back.  When Sindile was near him the accused brandished an axe from behind his back and hit Sindile with the back of the axe on the left side of his face.  Sindile collapsed.  The accused said to him that they should search Sindile but he refused.  He then told the young man with whom he was to search Sindile. 

[3]        Xola testified that as the young man was bending down to search Sindile, he ran away.  He went to the tavern, bought the cigarettes and used the same route to walk in the direction of his home.  Sindile was still lying at the same spot.  He tried to pick him up but was unable to get him on his feet because he was floppy.  He was talking to Sindile but did not get a coherent response from him.  He could make out from what he said that he was from that area.  He went to nearby premises but most of the gates were locked.  He managed to get one lady who did not know a person by the name of Sindile.  He returned to Sindile whereafter Ayanda Peter appeared.  He told Ayanda that the accused had assaulted Sindile.  Ayanda then told him that he had been with the accused earlier that day.  Ayanda produced a fixed bladed knife and said that it belonged to the accused. 

[4]        Two young men, armed with a kapmes and a panga respectively, ran in their direction.  They said that they were looking for the accused.  They left the scene.  Shortly thereafter the accused and two other persons appeared.  He told Ayanda that he would be leaving because he did not want anything to do with the accused.  Ayanda also moved in the direction of the gate of his premises.

[5]        Later that day he met the accused when he was heading towards a taxi rank.  The accused asked him whether he learned that he had killed that person.  The accused threatened to kill him if he would tell anyone what he knew.  He reported the incident to the police but did so only on 25 December 2017 after enjoying the festivities of that period.

[6]        Mzimazi Breakfast testified that the accused’s father is his cousin.  He was sleeping at home at about 05h00 on 23 June 2019 when the accused knocked on the door of his house.  He opened the door and the accused asked him whether he did not have a plastic bag as he needed something to cover himself as he was going to get something to smoke.  He gave the accused a plastic bag, the size of an ordinary black refuse bag, which he obtained from his workplace.  While the accused was talking to him, the accused was also conversing in Sesotho with a person who was walking in the street.  The conversation happened before he handed the plastic bag to the accused.  After he had given the bag to the accused, the latter hurriedly closed the door.  He then locked the door and went back to sleep.  

[7]        At about 07h00 he heard people making a noise not too far from his house on a vacant erf where foundations had been laid but no walls had been built.  He went to investigate.  The rain had stopped by then.  The body of Mr Matshona was lying on one of those foundations.  The upper part of his body was covered with the plastic bag which he had given to the accused earlier that morning.  He went home to report to his wife that the bag that he had given to the accused was used to cover part of the deceased’s body.  He decided to look for the accused to get an explanation as to why the bag was used to cover the deceased.  On his way he was called and informed that Siziwe Peni, his cousin, was at home.  Upon arrival at home, Siziwe told him that the accused was at her home earlier that morning and said that he had killed a person.  They went to look for the accused at his house.  Although the door was open there was no one at home.  They returned to his house and decided to tell the police what had happened earlier that morning at their respective homes.  They went to the police who were on the scene.  On their way to the police station Siziwe saw the accused at his house.  She alerted the police.  The accused was arrested and taken with them to the police station where they all made statements.

[8]        Siziwe testified that she is the accused’s aunt because his deceased father was her brother.  During the early hours of 23 June 2019 she was sleeping in the same bedroom with Funeka Calu when the accused knocked on her bedroom window.  She asked him what he wanted.  He asked her to open the door.  She refused to do so.  Funeka opened the door.  He entered her bedroom while she was still in bed.  He said to her that he had killed a person in the street in which one Msuthu lived.  She knew what area he was referring to because she knew Msuthu’s wife.  The accused cried after telling her that he had killed a person.  She told him that he would be arrested.  She also told him to leave her house.  After he had left she and Funeka went back to sleep. 

[9]        After 08h00 that same morning she and Funeka went to the place that the accused had described to them.  The police, an ambulance and many people were on the scene which was the vacant erf in front of Mzimazi’s house.  She saw a body on the ground.  She went to Mzimazi’s house where she told him about the accused’s early morning visit to her house and what he had told her.  She confirmed that they did not find the accused at home whereafter they went to the police.  As the police were conveying them to the police station she saw the accused, alerted the police and he was arrested.  They went to the police station.

[10]    Funeka testified that, although she ordinarily resides in Port Elizabeth, she was a seasonal farm worker in Addo for the last number of years.  When she was doing seasonal work, she lived in Siziwe’s house.  On the evening of Saturday, 22 June 2019 they went to bed.  While they were sleeping, the accused knocked on the windows of the front room as well as the bedroom in which they were sleeping.  She opened the kitchen door for him and he entered the house.  He told her that he had killed a person.  She asked him where he killed the person and with whom he was when he did so.  He said that he was with a Basotho man.  She asked where he was.  When he said that the man was outside she told him to call him.  The man entered with the accused.  She asked the man what happened and he answered in English that the two of them had killed a person.  She wanted to know why they had done so.  Before the man could answer, the accused went into Siziwe’s bedroom.  She and the man remained in the kitchen.  He did not tell her why they killed the person.  She went to Siziwe’s bedroom, leaving the man in the kitchen.  At that stage Siziwe told the accused leave her house.  Her version as to what happened after the accused had left and what happened the following morning was substantially consistent with Siziwe’s version. 

[11]    Gert Loyd is a policeman for the last 38 years, a detective since 1984.  He testified that he was the initial investigating officer in count 1.  On 24 December 2017 he went to the scene where the body of Sindile was found.  He arrested the accused, Ayanda and Lwazi Mgqthelana on count 1, but the charge of murder was later withdrawn against the two of them because of a lack of evidence.  He testified that his interrogation of the accused caused him to search his house for clothing which could possibly have had blood on it.  Although he found clothing, he did not find blood spots on it.  During the search he came across an axe under the bed in the accused’s bedroom which he seized. 

[12]    Warrant officer Loyd testified that he was at the vacant erf on 23 June 2019 when Mzimazi and Siziwe approached him.  Mzimazi told him that earlier that morning he gave the accused the plastic bag which was on the deceased’s head where his body was found.  Siziwe told him that the accused was at her home earlier that morning and told him that he had killed a person.  He arrested the accused as he was taking Mzimazi and Siziwe to the police station.  He took a statement from the two of them on that same day.  Another person was charged with the accused for murder but the charge was withdrawn against that person.  The parties agreed that on 27 November 2019 the Director of Public Prosecutions instructed that the charge of murder be withdrawn against Masakala.

[13]    The accused admitted in terms of section 220 of the Criminal Procedure Act[1] that the deceased in count 1 was Sindile Qebelu, a 40 year old male and that his body sustained no further injuries from the time that it was discovered on the crime scene on 24 December 2017 until the medico-legal post mortem examination was performed on his body on 27 December 2017 by Dr Jan Antonie de Beer.  The accused also admitted that the deceased in count 2 was Mbulelo Matshona, a 35 year old male and that his body sustained no further injuries from the time that it was discovered on the crime scene on 23 June 2019 until the medico-legal post mortem examination was performed on his body on 24 June 2019 by Dr de Beer.  The photographs depicting the respective scenes of crime and the post mortem reports were earlier admitted as evidence, by agreement.

[14]    The accused testified that he was at home with his girlfriend from the evening of 23 December 2017 until about 10h00 on 25 December 2017.  For most of that time they were drinking liquor.  After washing themselves on 25 December 2017 they went to her home where they joined her family for a braai.  He was arrested by warrant officer Loyd while he was at his home on 26 December 2017.  Upon his arrest warrant officer Loyd asked him where the axe was which he used to kill a person.  He showed him an axe which was inside his house.  Warrant officer Loyd was not interested in that axe.  They went to the police station where he saw Xola and Ayanda.  Xola pointed at him as being Thembi.  He was placed in a cell.  Later he was recalled from the cell and shown an axe which he saw for the first time.  He accordingly denied that he was in Msuthu’s Street at approximately 03h00 on 24 December 2017 or that he met or threatened Xola on 25 December 2017.

[15]    He testified that on the evening of 23 June 2019 he was at a tavern with Masakala when a fight broke out between Masakala and Mbulelo, the deceased in count 2.  He joined other patrons to stop the fight.  He ran short of money.  He and Masakala went to his house where he fetched money.  On their way back to the tavern they came across Mbulelo in Msuthu’s Street.  Masakala picked a fight with Mbulelo, hitting him with fists and head butted him.  He stepped in between them to stop the fight but stood back when Masakala drew a knife with which he stabbed Mbulelo.  Masakala told him to look for a bag because he wanted to put the body in it.  He went to Mzimazi’s house and informed him, when he opened the door, that the person with whom he was had killed a person and required a bag.  At that stage Masakala was standing behind him.  Mzimazi gave him a black refuse bag.  He gave it to Masakala who said that it was too small.  He testified that Mzimazi gave him a bigger bag which is depicted on Mbulelo’s body in the photographs.  Mzimazi then told them to leave.  He decided to report the incident to Siziwe, his aunt.  The deceased was still lying at the same spot in the street.  He realised that Masakala was following him.  He knocked and Siziwe opened the door.  She was with Funeka.  Masakala was standing behind him.  He told Siziwe that the person in his company had killed a person.  Siziwe chased him away.  He left and went home.  Upon his arrest later that day he told warrant officer Loyd that Masakala had killed the deceased.

[16]    Nandipha Mfundi testified that the accused is the father of her child.  They were in a love relationship during December 2017.  She can recall that she was at work on Friday, 22 December 2017 whereafter she was off duty for a few days which she spent with the accused.  Her evidence was that she spent the entire day on 23 December 2017 at the accused’s house where they consumed the equivalent of 7 litres of beer.  They went to bed that evening, woke up the following morning and went to her parental home later that day.  They remained at her parental home on 24 and 25 December 2017. 

[17]    She furthermore testified that when the police arrived at the accused’s house on 26 December 2017 a policeman asked him where the axe was with which he had committed an offence.  She saw the accused going towards the bathroom.  She knew that there was an axe with other tools in the bathroom.  She left before the accused could point out anything to the policeman.  The accused then closed his case.

[18]    Before the accused can be convicted of murder, the state must show beyond reasonable doubt that he unlawfully and intentionally caused the death of the deceased in both counts.  An accused is entitled to be acquitted if it is reasonably possible that he might be innocent.  The state proved its case beyond reasonable doubt only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true.   A determination of whether or not the state proved its case beyond reasonable doubt can be made only if all the evidence has been taken into account.  Some of that evidence will be accepted, others rejected while some of it might be found to be only possibly false or unreliable. [2] 

[19]    The evidence of the state against the accused relating to count 1 consists of the evidence of Xola, Dr de Beer, in the form of the post mortem report, and some of the photographs.  Dr de Beer saw incised wounds on Sindile’s right and central forehead, bridge of his nose, multiple lacerations on the left side of his head – appearing to be burst lacerations; a burst laceration and incised wounds on the back of his head and extensive skull fractures.  Against the background of the above injuries, Dr de Beer determined the cause of death to be blunt force used to Sindile’s head.  The fractures at the back of the skull, incised wounds and lacerations were depicted in some of the photographs.

[20]    Xola was a single witness.  His evidence should accordingly be treated with caution.  His evidence was that the blow with the axe landed on the left side of the deceased’s face.  Dr de Beer did not specifically refer to an injury on the left side of the deceased’s face that could have been caused by a blow by an axe.  He referred only to multiple lacerations on the left side of Sindile’s head.  Although Dr de Beer concluded that blunt force to Sindile’s head caused his death, the evidence adduced was insufficient to make a finding that the blow to the left side of Sindile’s head caused or contributed to his death.  There was no evidence that the extensive skull fractures, to which Dr de Beer referred, were cause by the blow to the left side of Sindile’s face.  Xola testified that, when he left the scene, the fracture at the back of the deceased’s skull and injuries on his forehead were not there.  In the circumstances, assuming that Xola’s evidence were to be accepted that he saw the accused landing a blow on the left side of Sindile’s face, this court is unable to make a finding that the accused’s conduct described by Xola, caused Sindile’s death.

[21]    Xola’s version contained too many coincidences.  For example, he testified that there was a traditional ceremony at his homestead the night before the incident.  The elders in the family admonished the youngsters, inclusive of him, not to leave the homestead during that period.  However, early that morning he left the homestead because, although he had dagga, he needed cigarettes with which to mix it before smoking it.  He heard that there was noise emanating from a local tavern.  He set off in that direction to buy cigarettes.  It was whilst he was on his way to the tavern that he coincidentally met the accused who, in front of him, hit the deceased on the head with an axe.  Instead of running home, he persisted with his quest to get cigarettes from the tavern.   There is no evidence that he made any report to anyone at the tavern about what he had seen.   Upon his arrival at the scene where the deceased was lying, he was met by Ayanda who produced a knife with which he coincidentally connected the accused.  The accused thereafter coincidentally arrived on the scene whereafter Xola left. 

[22]    Furthermore there were material contradictions between his evidence in court and the statement he had made to the police shortly after the incident.  For example, there was a difference as to whom the knife belonged that Ayanda had; whether he went home or to the tavern after he had left Ayanda and the accused at the scene; and whether the deceased went to the accused or vice versa after the accused had called him.

[23]    Xola testified over the course of two days.  His evidence before lunch on the first day was straight forward and easy to follow.  The same cannot be said about the quality of his evidence after lunch on that day.  Questions had to be repeated, he did not answer questions as spontaneously as he did before lunch and at times the answers that he gave did not relate to the questions asked.  There certainly was a suspicion that he had taken a substance that might have influenced his thinking.

[24]    Mr Engelbrecht, counsel for the state, submitted that, despite the above criticisms, there was corroboration for Xola’s version that it was the accused who hit the deceased on the head.  The corroboration, it was submitted, was in the form of the retrieval of the axe from the accused’s house by warrant officer Loyd.  There were different versions in that regard.  Warrant officer Loyd testified that, during the search of the accused’s house, he came across an axe under a bed in the accused’s bedroom.  The accused testified that, when he showed an axe which he had retrieved from his bathroom to warrant officer Loyd, he showed no interest therein because, according to him, that was not the axe with which he had committed the offence.  It was only later, when he was taken from a cell, that an axe was produced at the police station.  That was the same axe that was shown to him in court during the hearing.  Although Ms Mfundi did not see the accused showing the axe in the bathroom to warrant officer Loyd, she saw him going in that direction after warrant officer Loyd had asked him for an axe.

[25]    Ms Mfundi did not impress as a witness.  Her evidence, that she walked away when her boyfriend and father of her child was accused of a serious offence, is improbable.  The impression was gained that she came to court simply to lend support to the accused’s alibi, no matter how that support was given.  However, she failed in that regard because her evidence and the accused’s evidence differed as to the many days that the two of them spent at her parental home.  That difference casts a doubt on the credibility of her evidence.

[26]    The criticism of Ms Mfundi’s evidence is irrelevant because of the absence of quality of Xola’s evidence.  There was no onus on the accused to prove his alibi.[3]  The evidence relating to his alibi cannot be considered in isolation.  It must be considered in the light of all the evidence and the court’s impression of the witnesses.[4]  Mr Engelbrecht correctly conceded that Xola was not a satisfactory witness.  I would find it difficult to place any reliance on his evidence.  In the light of all the evidence, the accused’s version, that it was not he who attacked the deceased because he was at home, cannot be said to be so improbable that it was not reasonably possibly true.  In all the circumstances, I am of the view that it cannot be said that the state proved its case beyond a reasonable doubt against the accused.  He must accordingly be found not guilty of the murder of Sindile Qebelu on 24 December 2017. 

[27]    Mr Engelbrecht submitted that the evidence of warrant officer Loyd should be accepted that an axe was found under a bed in the accused’s bedroom, as opposed to in his bathroom.  Although there is no reason to reject warrant officer Loyd’s evidence, that evidence is, in my view, insufficient to link the accused with the killing of the deceased, albeit that there might be a suspicion in that regard.  Mr Engelbrecht’s further submission that the nature of the attack and the blow to a vital part of the body is indicative of the fact that the perpetrator had the intention to kill the deceased, is correct.  However, in view of my finding on the reliability of Xola’s evidence, it cannot be said that the accused was the perpetrator.  The accused can therefore also not be convicted of attempted murder, as submitted by Mr Engelbrecht.

[28]    Regarding the events that unfolded on 23 June 2019, it was common cause that Mbulelo Matshona was unlawfully and intentionally killed on that day.  The issue was the identity of the attacker or attackers.  There was no eyewitness to the killing.  The state’s case consisted of the evidence of Mzimazi, Siziwe and Funeka.  All three of them testified that the accused reported to them that he had killed the deceased.  That admission was made shortly after the killing of the deceased.  The accused testified that after Mzimazi had opened the door of his house, he told him that Masakala, who was standing behind him, had killed a person and required a bag within which to place the body of the deceased.  He then went to Siziwe to make a similar report but she chased him away. 

[29]    There is no duty upon an accused person to give any reason why a state witness might falsely implicate him.[5]  Mr Sojaja, attorney for the accused, submitted that the accused’s version, that Mzimazi must have misunderstood it when the accused  said to him that it was Masakala who had killed the deceased, was reasonably possibly true. That submission was made on the assumption that the accused’s evidence would be accepted that Mzimazi did not give him an opportunity to explain that Masakala had killed the deceased and that he told Siziwe, Funeka and the police that it was Masakala who had killed the deceased.  That submission was not based on the accused’s evidence.  He testified that he told Mzimazi that it was Masakala who had killed the deceased.  When that proposition was put to Mzimazi, he flatly denied it.  He stuck to his evidence that the accused had told him that he had killed the deceased.  Siziwe also had no doubt that the accused had reported to her that he had killed the deceased.  Funeka testified to the same effect.  She also gave hearsay evidence of what Masakala had told her.  Mzimazi, Siziwe and Funeka made a good impression as witnesses.  They answered questions in a straight forward manner.  It must have been very difficult for Mzimazi and Siziwe to testify against the accused who is a member of the family.  There was furthermore no difficulty or problems between the accused, on the one hand, and them, on the other hand.

[30]    In my view, against the background of all the evidence, the accused’s version is so improbable that it cannot be said to be reasonably possibly true.  There was no explanation, if it was Masakala who had killed the deceased, why he did not make a report to the police before his arrest.  Furthermore, his denial, that he reported to Mzimazi, Siziwe and Funeka that he had killed the deceased, is rejected.  Their evidence, because of the credible nature thereof, is accepted.  His evidence, on the other hand, is rejected as false.  That being the case, it is found that the state proved its case beyond reasonable doubt.

[31]    In the result, the accused is found guilty of the murder of Mbulelo Matshona on 23 June 2019.

____________________________

G H BLOEM

Judge of the High Court

For the state:                                                             Mr J Engelbrecht of the office of the National                                                                                       Director of Public Prosecutions, Grahamstown.

For the accused:                                                       Mr V Sojaja of Legal Aid Centre, Grahamstown.

Date heard:                                                                8 to 11 February 2021 and 12 May 2021.

Date of delivery of judgement:                                14 May 2021.

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